Seminar Paper
Administrative Decision Making Delegations and Avoiding Bias
Katie Miller, Managing Principal Solicitor
Domenic Cristiano, Managing Principal Solicitor
Penina Berkovic, Principal Solicitor
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Table of Contents
Delegation and Bias 4
Delegation - some useful principles....................................................................................................................................... 4
Exercise of power under an express delegation provision.......................................................................................... 4
How delegation works............................................................................................................................................. 5
How is a power, duty or function actually delegated? ...................................................................................... 5
Who is the delegator?.......................................................................................................................................... 5
What is being delegated?..................................................................................................................................... 5
How is a power to be delegated, and on which terms? ..................................................................................... 6
Exercise of power where there is no express delegation provision ........................................................................... 7
Implied delegation?.................................................................................................................................................. 7
Acting under authorisation ..................................................................................................................................... 7
Conclusion ................................................................................................................................................................................ 8
Dealing with bias from the perspective of an administrative decision maker. ................................................................ 8
Introduction ................................................................................................................................................................. 8
General principles...................................................................................................................................................................... 8
Foundations of the bias rule for administrative decision-makers.............................................................................. 8
Mechanisms for protecting against bias ...................................................................................................................... 9
The common law rule regarding bias.......................................................................................................................... 9
Actual bias ................................................................................................................................................................ 9
Apprehended bias .................................................................................................................................................. 10
Does the bias rule apply to all administrative decision-makers?......................................................................... 10
How does the rule against bias apply to administrative decision-makers? ......................................................... 11
Why should the rule against bias be less strict for administrative decision-makers than for judges? ................... 11
How should an administrative decision-maker deal with concerns about bias? ...........................................................11
Disclosure ................................................................................................................................................................... 11
Decision-makers will need to decide whether to act conservatively or robustly ................................................... 12
Necessity ..................................................................................................................................................................... 13
Additional obligations on public servants...........................................................................................................................13
Conclusion ..............................................................................................................................................................................13
Appendix - Examples of how the courts have applied the bias rule to different decision-makers ................................ 15
Least strict application of the bias rule - Ministers of the Crown ...................................................................................15
Minister for Immigration & Multicultural Affairs; Ex parte Jia Legeng.................................................................. 15
Facts of the case...................................................................................................................................................... 15
High Court’s decision ............................................................................................................................................ 16
The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources
..................................................................................................................................................................................... 16
Facts of the case...................................................................................................................................................... 16
Federal Court’s decision......................................................................................................................................... 16
Less strict application of the bias rule – panels appointed by a Minister........................................................................17
Less strict application of the bias rule - municipal councils.............................................................................................17
Application of the bias rule for public officials involved in administrative decision-making .....................................18
Mongan v Woodward ................................................................................................................................................ 18
Facts of the case...................................................................................................................................................... 18
Findings of the Court............................................................................................................................................. 18
Hot Holdings Pty Ltd v Creasy .................................................................................................................................. 19
Second strictest application of bias rule - administrative tribunals.................................................................................19
Maguzzu v Business Licensing Authority ................................................................................................................. 20
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka........................................................... 20
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Strictest application of the bias rule - courts ......................................................................................................................21
R v Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet (No 1) ................................................... 21
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Delegation and Bias
Delegation - some useful
principles
Many of you will be familiar with the following
common law maxim: delegatus non potest
delegare. That is, one who is vested with a
particular statutory power must exercise it
personally, rather than delegate it. The rationale
behind this maxim is straightforward; had
Parliament intended for someone other than the
particular person or body stipulated in an Act to
exercise a power, or carry out a duty or function,
Parliament would have so legislated.
In a practical sense, always following this maxim
could prove to be very inconvenient, if not
impossible. For example, what if the exercise of
a particular power is vested in a statutory body
such as a Board or Tribunal, as opposed to an
individual? Or what if the power is one of a
multitude of powers vested in a particular
person, such as a Secretary or Minister?
In recognition of these difficulties, many Acts
expressly allow for the delegation of powers,
duties or functions vested in a particular person
or body.
Delegation allows a person who has been
delegated a power (the delegate) to exercise that
power ‘without further authorisation’.1
Exercise of power under an express
delegation provision
Delegation provisions in Acts are all different.
Some are broad and some are quite limited.
When delegating pursuant to an express
delegation provision in an Act, delegation is
necessarily limited by the scope of the terms of
that provision. It is therefore important to
closely consider a delegation provision so that
you have a clear understanding as to what may
be delegated, and to whom, under that
delegation provision.
For example, let’s consider the delegation
provision in s 44 of the Plant Health and Plant
Products Act 1995:
4.3
Delegations by a Minister
(1) The Minister may by instrument
delegate to any person or class of
persons employed in the administration
of this Act (other than an inspection
agent) any power of the Minister under
this Act except this power of delegation
and the powers under sections 5A, 17,
20 and 46.
(2) The Minister may by instrument
delegate to the Secretary the power of
the Minister under section 17, subject
to the condition that an order made by
the Secretary under that section as
delegate of the Minister must not
operate for any period exceeding 7
days.
(3) The Minister may by instrument
delegate to the Secretary the power of
the Minister under section 5A.
This delegation provision contains many selfimposed limitations. First, it only applies to
powers vested in the Minister, as opposed to any
other person or body. Second, it provides that
only some of powers vested in the Minister
under the Act may be delegated (ie, not powers
contained in ss 20 and 46). The powers that are
able to be delegated may be delegated to persons
employed in connection with the administration
of the Act but not by inspection agents. In
relation to the Minister’s powers in ss 5A and 17,
the delegation provision allows these to be
delegated to the Secretary only, and in relation
to the power under s 17 under prescribed
conditions only.
This example demonstrates that a good
understanding of a delegation provision itself is
necessary, prior to the usage of that provision to
delegate powers, duties or functions. A failure to
have that understanding could lead to the risk of
an ultra vires delegation being made, ie, a
delegation being made without power.
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How delegation works
Let’s now consider some of the ‘nitty-gritty’
factors in connection with delegation. These
may be summarised as follows:
•
How should a power, duty or function
actually be delegated?
•
Who is the delegator? And to whom are
they delegating?
•
What is being delegated?
•
How, or under which terms, is the power
to be delegated?
How is a power, duty or function actually
delegated?
Typically, delegation is done by a written
instrument, which records particulars about the
delegation. Many delegation provisions in Acts
specifically require a delegation to be contained
in an ‘instrument’. The instrument of delegation
should in itself be an entire record of the
delegation. It should clearly state who is the
delegator of the power, duty or function and
who is/are the recipient(s). It should specify the
exact nature of the powers, duties or functions
being delegated, and contain any limitations or
conditions on the delegation. It is also best
practice for the instrument of delegation itself to
be entitled as an ‘instrument of delegation’, and
for it to expressly refer to the provision of the
Act under which the powers, duties and/or
functions are sought to be delegated.
Of note here, s 41A of the Interpretation of
Legislation Act 1984 provides that where there is
a power to make an instrument, there is also a
power to amend it or revoke it.
It is useful to note that an instrument of
delegation may be amended or revoked at any
time by the delegator.
It is best practice for instruments of delegation to
be reviewed regularly. In this sense, it is a good
idea to diarise to review instruments of
delegation for which you are responsible at
regular intervals, maybe once a year or every six
months, and in any event, review instruments of
delegation when there is a change in
government, or change in office (eg, new
Secretary or Director) or a change in the relevant
legislation.
Who is the delegator?
The delegator must be the person or body vested
with the particular power, duty or function
which is sought to be delegated. The delegator
should be described in the instrument of
delegation by their particular title (eg, the
Minister, the Secretary, the Director etc) and this
title should be consistent with that referred to in
the delegation provision in the relevant Act.2
Similarly, the instrument of delegation should
clearly describe to whom particular powers,
functions and duties are to be delegated.
Delegation should be to the holder of a position
rather than to a named individual and may be to
more than one position of office. Unless it is
expressly stipulated in a delegation provision or
elsewhere in the Act, there are no set rules as to
how many persons a power, duty or function
may be delegated to, nor as to who is the holder
of a suitable position of office for the purposes of
delegation. These are matters for the delegator.
A sensible and practical approach should be
taken. For instance, if a particular power which
is sought to be delegated is routinely exercised
every day, it would make sense for that power to
be delegated to a number of persons, so that if a
delegate is absent from work one day, the
business of government can continue.
Further, if a particular power sought to be
delegated is quite significant, and is suitable for
exercise at a high level only, it is important that
it is delegated to only high level officers. Of note
here, and as will be later discussed, a delegate
exercises a power on his or her own behalf (as
opposed to on the delegator’s behalf). Keeping
this in mind, a power should only be delegated to
someone whom the delegator believes is
competent to make the relevant decision.
What is being delegated?
The instrument of delegation should be explicit
in outlining which of the delegator’s powers are
being delegated. This may mean referring to
particular provisions, or sub-provisions of the
Act in question. Only powers that are in
existence at the time of delegation may be
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the delegate, shall, for the purposes of the
Act or subordinate instrument, be taken
to have been discharged, exercised or
performed by the person or body.
delegated.3 Further, and as I mentioned earlier,
the delegation provision itself may limit the
powers that are able to be delegated.
How is a power to be delegated, and on which
terms?
(2) If an Act or subordinate instrument
confers power to delegate to the holder of
an office or position, then, unless the
contrary intention appears, a delegation
may be made to any person for the time
being acting in or performing the duties of
that office or position.
The Interpretation of Legislation Act 1984
provides some useful guidance here:
42
Exercise of delegated powers
(1) Where the discharge, exercise or
performance by a person of a
responsibility, power, authority, duty or
function under an Act or subordinate
instrument is dependent upon the
opinion, belief or state of mind of that
person in relation to a matter and the
responsibility, power, authority, duty or
function is, in accordance with the Act or
subordinate instrument, delegated, the
delegate may, unless the contrary
intention appears, discharge, exercise or
perform the responsibility, power,
authority, duty or function upon the
delegate's own opinion, belief or state of
mind (as the case requires) in relation to
that matter.
(2) Subsection (1) applies in relation to a
delegation made under an Act or
subordinate instrument, whether the
delegation was made before or after the
commencement of this Act.
42A
Construction of power to
delegate
(1) If an Act or subordinate instrument
confers on a person or body a power to
delegate the discharge, exercise or
performance of a responsibility, power,
authority, duty or function under that or
any other Act or subordinate instrument,
then, unless the contrary intention
appears—
(a) the delegation does not prevent the
discharge, exercise or performance of the
responsibility, power, authority, duty or
function by the person or body;
(b) the delegation may be made subject to
such conditions or limitations as the
person or body may specify; and
(c) a responsibility, power, authority,
duty or function so delegated, when
discharged, exercised or performed by
Section 42 provides that a delegate must utilise
his/her own ‘opinion, belief or state of mind’ in
making a decision pursuant to a delegation. Thus
s 42 confirms that a delegate is an independent
decision-maker. Section 42A provides some
useful insight into how delegation actually
‘works’:
•
Delegation of a power, duty or function
does not prevent the delegator from
exercising the power, duty or function
him/her/itself;
•
The effect of a delegate exercising a
delegated power, duty or function is the
same as if the delegator had done so;
•
A delegation may be subject to any
conditions or limitations specified by the
delegator; and
•
A delegation may also be made to a person
‘acting’ or ‘performing the duties’ of a
delegate.
It is useful to further discuss the types of
conditions and/or limitations which may be
imposed on a delegation. Typical conditions
include those which require a decision to be
made by a delegate in a manner which is
consistent with policies, procedures and
directions issued by the relevant government
department or statutory body. It is important for
any such policies to be clear so that no question
will arise as to whether a decision made by a
delegate is invalid because the delegate did not
follow the policy. It is also good practice for
delegates to state explicitly in any written
decision that the relevant policy was taken into
account by the delegate when making the
decision.
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A delegator, however, must take care to ensure
that any conditions or limitations placed on a
delegate in connection with the exercise of a
power, duty or function, do not hinder that
delegate from making an independent decision
based on his/her ‘opinion, belief or state of
mind’. The risk of failing to take such a
precaution is that the delegate could be seen to
be ‘acting under dictation’ or inflexibly applying
policy, and decisions made by that delegate could
be subject to challenge.
Exercise of power where there is no
express delegation provision
We have discussed delegation pursuant to an
express delegation provision in an Act. But what
if there is no such express delegation provision in
an Act?
Implied delegation?
The Carltona principle recognises that
Government officials or bodies have agents
within their departments who may be authorised
to carry out certain tasks without having a
formal delegation to do so. The rationale for this
is that ‘[N]o permanent head of a department in
the Public Service is expected to discharge
personally all the duties which are performed in
his name…’.7
Authorisation pursuant to the Carltona principle
differs from delegation in that the authorised
agent acts in the name of the person or body
vested with a particular power, rather than in
their own name. Authorisation pursuant to the
Carltona principle may be express (eg, set out in
an express instrument of authorization) or
implied. As with delegation, it is also good
practice to create a written instrument of
authorisation.
While it is the general rule that if there is no
express power of delegation in an Act, powers,
duties and functions found in that Act cannot be
delegated, in some circumstances it may be
possible to construe from the way an Act is set
up an implied power to delegate. It is necessary
to consider the nature, scope and objects of the
relevant Act, the character of the power to be
delegated and the circumstances when the power
is able to be exercised, as well as any other
relevant considerations.4 It may also be possible
to use a general delegation provision in one Act
to delegate a power in another Act, where it is
clear that the legislative scheme set up requires
the two Acts to be read together. Caution should
be exercised, however, in purporting to rely on
an implied power to delegate.
The exercise of a power, duty or function as an
agent pursuant to the Carltona principle, is only
appropriate in some circumstances, usually when
the relevant power duty or function is of an
administrative nature and routine. As Mason J
explained in Minister for Aboriginal Affairs v
Peko-Wallsend:8
Acting under authorisation
It should therefore not be assumed that the
Carltona principle may be applied to overcome a
situation where there is no express ability to
delegate. It may be that some powers, duties or
functions, particularly if their exercise would
have significant repercussions, may only be
validly exercised by the person or body vested
with them.
It may also be possible for powers, duties or
functions to be carried out by agents of the
person or body vested with them. Such powers,
duties or functions are carried out ‘in the name’
of the person or body vested with it. This is
known as the Carltona principle after the case in
which the principle was put forward.5 The
Carltona principle was accepted as applying in
Australia in the High Court case of O’Reilly v
State Bank of Victoria Commissioners.6
‘ The cases in which the principle has
been applied are cases in which the
nature, scope and purpose of the
function vested in the repository made it
unlikely that Parliament intended that it
was to be exercised by the repository
personally because administrative
necessity indicated that it was
impractical for him to act otherwise
than through his officers…’
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Conclusion
In summation of today’s discussion, the
following matters should be considered when
determining how a particular power, duty or
function is to be exercised:
1. Does the Act in question have an express
provision allowing for delegation?
a. If so, that provision should be
considered carefully and any
limitations contained in that
provision should be noted.
2. If delegation is expressly allowed, it
should be recorded in an instrument of
delegation, which should contain all of
the information relevant to the
delegation, including:
a. The source of the power to
delegate.
b. The powers, duties and functions
that are sought to be delegated.
c. The identity of the delegator and
the delegate(s).
d. Any conditions or limitations to
be placed on the exercise of the
powers, duties or functions
delegated.
3. Instruments of delegation should be
regularly reviewed.
4. If there is no express provision for
delegation in the Act, or if the delegation
provision in the Act does not attach to
the power, duty or function sought to be
delegated, consider whether it is
administrative or routine in nature, and
whether it is therefore able to be carried
out by an agent pursuant to the Carltona
principle.
5. If there is no express provision for
delegation in the Act, or if the delegation
provision in the Act does not attach to
the power, duty or function sought to be
delegated, consider whether it may have
been Parliament’s intention that the
power, duty or function was to be
exercised only by the person or body
within which it has been vested.
Dealing with bias from the
perspective of an administrative
decision maker.
Introduction
As the nature and scope of administrative
decisions made by public officials continues to
expand, it remains more important than ever for
public officials and their lawyers to be familiar
with the law relating to bias. Unlike the bulk of
legal writing regarding the bias rule, which
focuses on judicial officers, this paper examines
the bias rule as it applies to non-judicial officers. 9
Once the general principles of the bias rule are
set out, we look at how the bias rule affects
administrative decision-makers and how they
should consider a claim of apprehended bias.
We also look at the additional layers of
accountability imposed on public sector
employees by the Public Administration Act
2004 (the PA Act).
General principles
Foundations of the bias rule for
administrative decision-makers
In Hot Holdings Pty Ltd v Creasy10 (Hot
Holdings), Kirby J traced the history of the civil
service in England and Australia to highlight the
importance of the bias rule in contemporary
Australian society. As Kirby J noted, the
nineteenth century saw significant growth of the
civil service in England. As a response to this
growth and the increasing potential for
corruption, competitive examinations were
introduced which helped create a culture of
personal integrity and financial probity in the
civil service.11 The Australian colonies and, after
federation, the Commonwealth and the States,
inherited this strong tradition.12 It is a tradition
which the courts continue to protect when they
engage in judicial review of administrative
decisions.
Federal and State Governments have also played
an important role in the development of the law
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on bias with the significant reforms of their
bureaucracies in the 1980s and 1990s.13 One of
the outcomes of this reform was the adoption of
codes of conduct for public servants in most
Australian jurisdictions.14
Mechanisms for protecting against
bias
Achieving proper accountability of government
activity ‘is the very essence of responsible
government’. 15 The proper accountability of
public service employees can be seen to have
three typical features:
•
•
•
accountability to official superiors and
peers;
accountability to agencies such as the
Auditor-General, the ombudsman and
Parliament; and
accountability to members of the public
directly, either as individuals (as through
administrative law mechanisms) or as a
community (who elect the Government
which oversees the public service).
In other words, while it is easy to focus
exclusively on the common law rule regarding
bias, it needs to be remembered that true
accountability extends beyond this and also
includes accountability to the Parliament and the
Executive.
The common law rule regarding bias
The rules of procedural fairness (or natural
justice) are minimum standards of fair decisionmaking imposed by the common law on
administrative decision-makers. The rules of
procedural fairness are generally formulated as
the rule against bias16 and the right to a fair
hearing17. If the rules of procedural fairness are
not complied with, an aggrieved person will
(usually) be able to seek judicial review of the
administrative decision.
The common law recognises two forms of bias,
actual bias and apprehended bias. It should also
be noted briefly that bias is not exactly the same
as a conflict of interest, they are slightly different
concepts.
There can be bias without any conflict of
interest, as where a decision-maker prints
personal comments on a web-site that suggest
they have pre-existing views about certain issues,
or if a decision-maker receives an inappropriate
email from a supervisor which could be seen as
affecting the ability of that person to bring an
open-mind to a decision. Winky Pop Pty Ltd v
Hobsons Bay City Council is a recent example of
this situation.18
Similarly, there may also be cases where
something could amount to a conflict of interest,
but may not amount to bias.
Actual bias
Actual bias has been described by the Federal
Court as follows:19
Actual bias exists where the decisionmaker has prejudged the case against the
applicant, or acted with such
partisanship or hostility as to show that
the decision-maker had a mind made up
against the applicant and was not open
to persuasion in favour of the applicant:
Wannakuwattewa v Minister for
Immigration and Ethic Affairs (Federal
Court of Australia, North J, 24 June
1996, unreported) and Singh v Minister
for Immigration and Ethic Affairs
(Federal Court of Australia, Lockhart J,
18 October 1996, unreported).
The courts have rarely found actual bias
to exist. That is principally because, at
common law, a reasonable apprehension
of bias suffices to disqualify a judicial
officer. Where actual bias exists,
reasonable apprehension of bias will also
exist and, consequently, courts
concerned with supervising the
application of the requirements of
natural justice have not had to go so far
as to find actual bias. Another reason is
that actual bias is difficult to prove.
Rarely will a judicial officer expressly
reveal actual bias.
Dilemmas regarding actual bias will rarely arise
with administrative decision-makers since their
professionalism will dictate that they would not
want to be involved in a decision unless they
were able to bring an open mind to a decision.
Page 10
While this situation will not always be clear cut,
for example where a decision-maker suffers from
actual bias as a result of some unconscious
discriminatory belief, it is unnecessary to
examine actual bias since the bulk of dilemmas
facing administrative decision-makers will not
involve actual bias, but the more subtle situation
of apprehended bias.
Apprehended bias
There is now one single test for apprehended
bias in Australia, and this test is the same for
both administrative decision-makers and judicial
officers. It has been described by the High Court
as follows:20
Where, in the absence of any suggestion
of actual bias, a question arises as to the
independence or impartiality of a
[decision maker], the governing
principle is that, subject to qualifications
relating to waiver … or necessity …, a
[decision-maker] is disqualified if a fairminded lay observer might reasonably
apprehend that [she or he] might not
bring an impartial mind to the
resolution of the question the judge is
required to decide. That principle gives
effect to the requirement that justice
should both be done and be seen to be
done... [emphasis added]
The application of this test requires two steps:21
First, it requires the identification of
what it is said might lead a [decisionmaker] to decide a case other than on its
legal and factual merits. The second step
is no less important. There must be an
articulation of the logical connection
between the matter and the feared
deviation from the course of deciding
the case on its merits. The bare assertion
that a judge (or juror) has an "interest"
in litigation, or an interest in a party to
it, will be of no assistance until the
nature of the interest, and the asserted
connection with the possibility of
departure from impartial decision
making, is articulated. Only then can
the reasonableness of the asserted
apprehension of bias be assessed.
[emphasis added]
This test rejects the notion, which had been
followed by Australian courts prior to 2000, that
the mere existence of a pecuniary interests
should automatically disqualify a person on the
grounds of bias.
While the test for bias is the same whether the
decision maker is a judge or an administrator,22
the common law in Australia has recognised and
accommodated the differences between court
proceedings and other kinds of decision
making.23 Ministers of the Crown for example
will be subject to a much less stringent
application of the bias rule as evidenced in
Minister for Immigration & Multicultural
Affairs; Ex parte Jia Legeng24 where Kirby J
stated:
Ministers are not judges. Clearly, the
pressures, processes and nature of
Ministerial decision-making differ from
the judicial task. Consequently, the
obligations imposed by courts on
officers of the Commonwealth,
including Ministers, should not “over
judicialise” the performance of their
functions, including the making of
decisions required of them by statute.
Does the bias rule apply to all
administrative decision-makers?
The scope of administrative law developed
throughout the 20th Century and by the 1990s
established that the rules of procedural fairness,
and therefore the bias rule, apply to
administrative decisions made under statute. As
was stated by the High Court in Annetts v
McCann:25
When a statute confers power upon a
public official to destroy, defeat or
prejudice a person’s rights interests or
legitimate expectations, the rules of
natural justice regulate the exercise of
that power unless they are excluded by
plain words of necessary intendment…
However when considering the operation of the
rule against bias in relation to the exercise of a
statutory power, the first step is to examine the
legislation under which the decision operates
and to see whether there is any legislative
Page 11
intention to vary (or exclude) the ordinary scope
of this rule.26
One example of such a variation of the rule
against bias can be seen in the decision of the
New South Wales Court of Appeal in Greyhound
Racing NSW v Cessnock & District Agricultural
Association which examined the Greyhound
Racing Act 2002 (NSW). Here, it was concluded
that a decision would not be set aside for
apprehended bias based solely on an association
between a member of Greyhound Racing NSW
and a greyhound racing club.27
A similar outcome might apply if legislation
expressly deals with issues of bias. For example,
if there is a specific conflict of interest provision
in legislation dealing with an administrative
decision-maker, this may have the effect of
varying the ordinary rule of bias.28
How does the rule against bias apply to
administrative decision-makers?
Statutory exceptions to the bias rule are
uncommon and the majority of administrative
decision-makers will be expected to comply with
the ordinary law. The question then arises as to
how this rule is to be applied for administrative
decision-makers as opposed to judicial decisionmakers. The following diagram provides a
simplified attempt at summarising how courts
have treated this distinction.
Strictness of the bias principle
More Strict
Less Strict
Ministers/panels
appointed by
Ministers
Municipal Councils
Public Officials
Administrative
Tribunals
Courts
Some examples of court decisions examining
each of these different types of decision-makers
are provided in the appendix to this paper.
Why should the rule against bias be
less strict for administrative decisionmakers than for judges?
In his 2005 paper on bias, Matthew Groves made
several distinctions between judicial decisionmakers and administrative decision-makers
which supported a less strict approach to the bias
rule for the latter. First, judges will have very
different training for making decisions than
administrative decision-makers. Administrative
decision-makers will often be career public
servants or have worked in that environment for
a considerable time. Whereas the prior work of
judges would have prepared them to adopt a
detached approach to their work, administrative
officials often retain close contact with the
people affected by their decisions and are often
involved in the implementation of their own
decisions. In addition to this, administrative
proceedings may only involve a single party, and
will often be less clearly articulated to the
decision-maker compared with judicial
proceedings where the issues are clearly
identified and addressed. Finally, the procedures
for administrative decision making are less
structured, so that the active involvement of
decision-makers in procedural issues is more
likely.
All of these factors support the view that a strict
application of the bias rule is not suitable for
administrative decision-making. However, this
raises the questions as to when an administrative
decision-maker should step aside for
apprehended bias or what process a decisionmaker should adopt when considering this
question?
How should an administrative
decision-maker deal with
concerns about bias?
Disclosure
An administrative decision-maker should
disclose any potential circumstances of
apprehended bias to any managers or other
supervising officials and consult with them
before determining how a matter should
proceed. This ensures that the actions of the
decision-maker are accountable within the
bureaucracy as well as being accountable by way
of judicial review. Such disclosure is also
consistent with the public sector values that
public servants are expected to follow.
The decision-maker then needs to consider
whether or not to disclose the interest or
association to external parties. In this regard it is
Page 12
important to note the distinction between what
is prudent and what is a requirement of law.
whether an impartial decision could have been
made.
In Ebner v Official Trustee in Bankruptcy, the
majority of the High Court thought it necessary
to distinguish between considerations of
prudence and requirements of law. The court
considered that, as a matter of prudence and
professional practice, judicial officers should
disclose interest and associations if there is a
serious possibility that they are potentially
disqualifying. However, the Court did not
suggest that this amounted to a duty to disclose.
In my view, this approach applies equally to
administrative decision-makers.
Accordingly, in some instances, the decision by
an administrator whether or not to step aside for
apprehended bias will have an element of risk
management to it. Often when this scenario
arises, the administrative decision-maker will
adopt a risk averse or conservative approach and
will seek to have the decision made by another
person. However sometimes a decision-maker
will consider that a more robust approach to this
matter is warranted where a decision-maker
considers that there is no substance to a claim of
apprehended bias despite the fact that one of the
affected parties may have raised it as an issue.
This approach might be warranted where
administrative problems would arise if a
conservative approach to apprehended bias was
adopted. For example if stepping aside would
create problems regarding quorum, such as
would have arisen in the Greyhound Racing
NSW case as well as in Maguzzu v Business
Licensing Authority.30 Another situation where
it could arise might be if the decision-maker is
concerned that the claim of apprehended bias
may be motivated by an attempt by an applicant
to get a more sympathetic decision-maker.31
Disclosure also has strategic importance because
if a party is aware of circumstances constituting a
ground for an objection on the ground of
apprehended bias and fails to object, then they
will be taken to have waived their right to raise
this matter if they are aggrieved by the eventual
decision.29
Decision-makers will need to decide
whether to act conservatively or
robustly
Assuming that the decision-maker has disclosed
their concern about potential apprehended bias
and has considered the views of affected parties,
the decision-maker will then need to consider
whether or not to continue with their
administrative functions or to step aside.
The rule against bias adopts an objective test.
Applying this test necessarily requires the judge
to make a value decision about what a
hypothetical ‘reasonable person’ would think
about a certain situation. These decisions may
vary from judge to judge (and from person to
person).
The decision of Hot Holdings is one example
where a majority of the High Court took the
view that there was no apprehended bias because
the persons with interests in the matter had only
played peripheral roles in the decision-making
process, while Kirby J and the Western
Australian Court of Appeal took the view that a
reasonable person would have been concerned
When considering whether to adopt a
conservative approach or a more robust approach
in responding to a claim of apprehended bias, a
decision maker needs to carefully weigh up the
potential for their decisions being legally
challenged, as well as the importance of
maintaining the reputation of the public service
as independent and impartial against the
competing factors of the strength or weakness of
the claim of apprehended bias and the
administrative consequences of agreeing to step
aside from the decision. Independent legal
advice regarding the strength of the claim of
apprehended bias may be desirable, although this
may not always be possible in the time needed to
make a decision. In some circumstances, there
will be no absolute answer as to what position a
decision-maker should take and it will require
the strategic judgment of a decision-maker.
Page 13
Necessity
It is possible in some instances that the principle
of necessity would allow a person of a Board, say,
who is subject to an apprehended bias to hear
and determine a matter. However in our view,
the doctrine of necessity should only be relied
upon as a last resort. In other words, before a
decision-maker decides to hear a matter on the
basis of the doctrine of necessity they should
consider all possible options for having the
matter heard by a person not affected by the
apprehended bias, such as delegating the power
to make a decision or appointing a substitute
decision-maker for the purpose of that decision.
Additional obligations on public
servants
In addition to the common law rule of bias, it
should be remembered that public service
employees are also bound by the public sector
values identified in the Public Administration
Act 2004 (the PA Act).
The public sector values listed in s 7 of the PA
Act include:
(b) integrity- public officials should
demonstrate integrity by(i) being honest, open and
transparent in their dealings; and
(ii) using powers responsibly; and
(iii) reporting improper conduct;
and
(iv) avoiding any real or apparent
conflicts of interest; and
(v) striving to earn and sustain
public trust of a high level;
(c) impartiality- public officials should
demonstrate impartiality by(i) making decisions and
providing advice on merit and
without bias, caprice, favouritism
or self-interest; and
(ii) acting fairly by objectively
considering all relevant facts and
fair criteria; and
(iii) implementing Government
policies and programs equitably;
…
In addition to this, pursuant to s 63 of the PA
Act, the Public Sector Standards Commissioner
(PSSC) has developed a binding code of conduct
for public service employees based on these
public sector values. Clause 4.1 of the Code of
Conduct states that:
4.1
Decisions and advice
Public sector employees make decisions
and provide advice that is free of
prejudice or favouritism and is based on
sound judgment…Their decisions are
not affected by personal influences.
4.4
Acting fairly
Public Sector employees deal with
issues consistently, fairly and in a
timely manner. Public sector
employees use fair criteria and consider
all relevant information in dealing with
issues.
Being fair means being just and
working within commonly accepted
rules.
Contravention of the PA Act or the Code of
Conduct by a public servant may amount to
misconduct pursuant to s 22 (2) of the PA Act
and could lead to disciplinary proceedings.
Conclusion
Administrative decision-makers always need to
be mindful about the rule against bias. However,
even the most diligent decision-maker will
encounter situations where there might be
arguments either way about whether an interest
or association is significant enough to amount to
an apprehended bias. In such situations, a
decision-maker is best advised to be open and
frank with their peers and superiors about the
potential bias, seek legal advice if the
circumstances warrant it and make an informed
Page 14
decision about whether the most appropriate
action is to step aside or to proceed to make the
decision.
For more information
For further information or legal advice on any
issues raised in this paper contact:
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Domenic Cristiano on 8684 0476
Principal Solicitor
Penina Berkovic on 8684 0469
Solicitor
The VGSO is the primary source of legal
services to the Victorian State Government and
its statutory authorities, providing strategic
advice and practical legal solutions.
This topic was the subject of the monthly VGSO lunchtime
seminar held on Thursday 20 March 2008.
These notes are published with the permission of the
presenters Domenic Cristiano and Penina Berkovic, and coauthor Emily Heffernan.
The notes are not be regarded as legal advice.
11
[2002] HCA 51, [88].
Ibid [89].
13
eg Western Australia, Report of the Royal
Commission into Commercial Activities of
Government and Other Matters (1992), Queensland
Electoral and Administrative Review Commission,
Report on the Review of Codes of Conduct for Public
Officials (1992).
14
Code of Conduct for Public Sector Executives 1989
(NSW), Code of Conduct for Officers in the
Queensland Public Service 1988 (Qld), Pecuniary
Interest handbook: A Guide for Council Officers and
Councillors 1989 (Vic), Rights, Responsibilities and
Obligations: A Code for Public Servants (Public
Service Commission of Western Australia) 1988
(WA).
15
Egan v Willis (1998) 195 CLR 424, 451 (Gaudron,
Gummow & Hayne JJ).
16
Previously know by the Latin: “nemo debet esse iudex
in propria sua causa” (no one may judge their own
cause).
17
Previously know by the Latin: “audi alternam
partem” (hear the other side).
18
[2007] VSC 468.
19
Sun Zhan Qui v Minister for Immigration and Ethnic
Affairs (1997) 81 FCR 71, [].
20
Ebner v Official Trustee in Bankruptcy [2000] HCA
63 [6] (Gleeson CJ, McHugh, Gummow and Hayne
JJ).
21
Ibid [8].
22
Hot Holdings Pty Ltd v Creasy [2002] HCA 51, [70].
23
Ibid.
12
24
25
1
Re Reference under Ombudsman Act (1979) 2 ALD
86, 94.
2
For example, if a power vests in a Director of a
statutory body, but the Director is commonly referred
to as the ‘Manager’ of that body, the instrument of
delegation should refer to that person as the Director.
3
Australian Chemical Refiners Pty Ltd v Bradwell
[1986] 10 ALN N96 (unreported, NSWCCA, 28
February 1986)
4
Re Reference under Ombudsman Act (1979) 2 ALD
86.
5
Carltona Ltd v Commissioner of Works [1943] 2 All
ER 560.
6
(1983) 153 CLR 1
7
Ibid at 31, pre Wilson J.
8
(1986) 162 CLR 24, at 38
9
This imbalance has been addressed in part by the paper
“The requirements of the rule against bias for nonjudicial decision-makers such as Ministers, tribunal
members and public officials”, which was delivered
by Matthew Groves at a seminar on 15 June 2005.
10
[2002] HCA 51.
(2001) 205 CLR 507.
(1990) 170 CLR 596, 598 (Mason CJ Deane &
McHugh JJ).
26
Greyhound Racing NSW v Cessnock & District
Agricultural Association [2006] NSWCA 222, [111]
(Basten JA).
27
Ibid [121] (Basten JA).
28
Section 142 of the Aboriginal Heritage Act 2006 may
be an example of this.
29
Vakuata v Kelly (1989) 167 CLR 568.
30
[2001] VSC 5.
31
The High Court in Ebner took the view that judicial
officers should not be too ready to disqualify
themselves when confronted with an insubstantial
objection, lest that led to forum shopping: Ibid [20].
Page 15
Appendix - Examples of how the courts have applied
the bias rule to different decision-makers
Least strict application of the
bias rule - Ministers of the Crown
In Hot Holdings Pty Ltd v Creasy1 (Hot
Holdings), Kirby J (who dissented) outlined the
development of bias in the context of Ministerial
decision-making. It is now accepted that, in the
absence of any contrary statutory intent, a
Minister of the Crown is subject to judicial
review on the grounds of bias.
However, as with municipal councillors, the
application of the bias rule for Ministers of the
Crown is much less onerous than for judicial
officers.
The difference in approach between Ministers of
the Crown and judicial officers was clearly set
out in Minister for Immigration & Multicultural
Affairs; Ex parte Jia Legeng2 and the Federal
Court recently reaffirmed this difference in its
recent decision of the Wilderness Society Inc v
the Hon Malcolm Turnbull, Minster for the
Environment and Water Resources.3
Minister for Immigration &
Multicultural Affairs; Ex parte Jia
Legeng
Facts of the case
This case involved (inter alia) an appeal by the
Minister for Immigration and Multicultural
Affairs ("the Minister") against a decision of the
Full Court of the Federal Court of Australia, with
respect to a decision to cancel Mr Jia’s visa. The
Full Court had held that, in exercising his powers
under ss 501 and 502 of the Migration Act 1958
(Cth) to cancel the visa and declare Mr Jia to be
an excluded person, the Minister was affected by
actual bias.
Mr Jia was a Chinese national who arrived in
Australia on a student visa in August 1991, who
made an unsuccessful application for refugee
status, was detained in custody for a time, and
was convicted of a number of offences against
the immigration and taxation laws.
In February 1995, Mr Jia was convicted of four
offences- unlawful assault causing bodily harm,
unlawful detention, making a threat to
unlawfully harm a person, and sexual
penetration without consent, for which he was
sentenced to a total term of imprisonment of six
years and three months.
In the aftermath of his convictions, a delegate of
the Minister refused Mr Jia’s application for a
Special (Permanent) Entry Permit (a decision on
which had been pending). On appeal, the AAT
determined Mr Jia was of good character, and
overturning that decision, remitted the matter to
a delegate of the Minister, with the direction
that he grant Mr Jia a visa.
This decision that attracted significant comment
in the media and upon invitation, the Minister
agreed to be interviewed on radio. After the
interviewer expressed concern about the
decision of the Tribunal, the Minister said he was
unhappy with the way in which the Tribunal
had been dealing with a number of immigration
matters, and indicated he had asked the Joint
Committee on Migration of the Parliament to
look into the question of criminal deportation.
When interviewer asked what the law provided
as to whether a person was of good character.
The Minister said:
"What we are looking at here is the
commission of offences. I don't believe
you are of good character if you've
committed significant criminal offences
involving penal servitude. The law does
Page 16
actually write down that that is the test
and it adds another test ... if you are
known to associate with organisations
that are involved in criminal activity,
you can be found to be of not good
character."
When asked, in effect, what he could do about it,
the Minister said:
"I'm considering what steps I can take
and there are some avenues. One of the
suggestions that's been made is that I
could in fact grant the visa and then
cancel it on character grounds. I have to
weigh up whether or not that is a proper
course for me to follow and I also have
to look at the issue as to what the
potential cost might be to the
community if it opens up a whole host
of other possible appeals to the Federal
Court."
Following an unsuccessful appeal (and a
withdrawn further appeal), the Minister’s
delegate granted the visa, but shortly afterwards,
the Minister subsequently exercised his
discretion to cancel the visa.
High Court’s decision
The High Court unanimously determined that
the Minister’s appeal should be allowed, with
each of the Judges emphasising the varying
nature of a Minister’s responsibilities, in contrast
to those of judges. Kirby J for example warned
that:
Ministers are not judges. Clearly, the
pressures, processes and nature of
Ministerial decision-making differ from
the judicial task. Consequently, the
obligations imposed by courts on
officers of the Commonwealth,
including Ministers, should not “over
judicialise” the performance of their
functions, including the making of
decisions required of them by statute. I
accept that the Minister’s remark on an
early morning interview should not be
dissected in the way sometimes
appropriate to analyses of the considered
reasons of a court or tribunal.4
The Wilderness Society Inc. v The
Hon. Malcolm Turnbull, Minister for
the Environment and Water
Resources
Facts of the case
This proceeding involved an application by The
Wilderness Society Inc. (The Wilderness Society)
made under ss 5 and 6 of the ADJR Act (Cth)
and s 39B of the Judiciary Act 1903 (Cth) to
review two decisions made by the
Commonwealth Minister for the Environment
and Water Resources (Minister).
The Wilderness Society alleged, inter alia, that
the decision regarding the relevant impacts of
the proposed action be assessed on preliminary
documentation under Division 4 of Part 8 of the
EPBC Act was invalid because it is affected by
apprehended bias in the Minister.
Federal Court’s decision
The Court rejected the bias ground of review
(and indeed, all grounds raised by The
Wilderness Society). In reaching this
conclusion, Marshall J concluded that the
Minster did not have a closed mind in the
assessment approach5 and stated that:
The critical issue is whether a wellinformed reasonable observer would
consider there was an apprehension of
bias in the Minister. The Minister
received strong advice from Mr Early,
who firmly believed in the preliminary
documentation assessment approach.
Gunns lobbied him in favour of that
approach. That approach also suited the
Tasmanian Government and enhanced
the chances of synchronisation of
approval under the EPBC Act with
approval by the Tasmanian Parliament.
By 2 April 2007, the Minister wanted to
know if an approval timeline ending in
August 2007 was possible because he
knew that was what the Tasmanian
Government and Gunns were pursuing.
However, the Minister did not consider
the preliminary documentation
assessment approach to the exclusion of
all other approaches. Even during the
course of making the assessment
approach decision, the Minister
Page 17
questioned Mr Early about why another
approach was not being recommended.
At the time of making his decision, I do
not consider that a well-informed
observer could reasonably form the view
that the Minister was biased towards the
preliminary documentation assessment
approach to the extent that he was not
prepared to even consider alternative
approaches, because he plainly did.
Less strict application of the bias
rule – panels appointed by a
Minister
In Mildura Rural City Council v Minister for
Major Projects, Morris J sitting as the President
of VCAT, considered how the bias rule applied to
expert panels established under the Planning and
Environment Act 1987. Morris J took into
account the administrative and policy role of the
panel, the source of its authority, the procedure
it may follow, and the fact that it makes
recommendations, not decisions, and concluded
that such panels were to be treated quite
differently as compared to courts.
In this case, the Victorian Government was
proposing to establish a containment facility for
hazardous waste at Nowingi in the north-west of
the State; a plan strongly opposed by the Mildura
Rural City Council. A panel of four members was
appointed to consider submissions concerning
the proposal.
One member of the panel, also appointed as the
chairperson, was Dr Bill Russell. The council
submitted that Dr Russell should disqualify
himself as a member of the panel on the ground
of apprehended bias due to his Australian Labour
Party links. Dr Russell did not disqualify himself.
In finding that there was no apprehended bias,
Morris J stated that:
In determining the content of the
rules of natural justice, or how a
particular rule may be applied, it is
not always helpful to divide
decision-makers into those
exercising judicial power and those
who form part of the executive
branch of government. Some bodies
– such as the Commonwealth
Administrative Appeals Tribunal –
form part of the executive but are
closely aligned with the judicial
model. Nevertheless, as Hayne J
observed in Jia, the degree of
divergence from the judicial
paradigm is relevant. The panel
appointed to consider the Nowingi
proposal diverges substantially from
the judicial model. The panel’s task is
essentially that of a government
advisor. The panel is appointed by
the Minister specifically for the
Nowingi proposal. A panel may
include persons who are employed
by the Crown. These characteristics
do not support a strict application of
the apprehension of bias principle on
the basis of an association between a
panel member and a Minister, or the
government generally.
Less strict application of the bias
rule - municipal councils
The application of the Bias Rule for elected
municipal councillors is much less onerous than
for judicial officers. The reason for this is that
councillors will often be familiar with issues that
they are expected to vote on, and may indeed
hold strong views in relation to them. The law
has recognized this reality and taken the view
that such circumstances should not invoke a
strict application of the rule against bias. For
example in the decision of Old St Boniface
Residents Association, Sopinka J of the Supreme
Court of Canada (on behalf of the majority of the
Court) stated that:
I would distinguish between a case of
partiality by reason of prejudgment on
the one hand and by reason of personal
interest on the other. It is apparent
from the facts of this case, for example,
that some degree of prejudgment is
inherent in the role of a councillor.
Adopting this approach, the Courts have made it
far more difficult to establish apprehended bias
in a municipal councillor based on their personal
views in relation to a matter. In the Supreme
Court decision of Winky Pop Pty Ltd v Hobsons
Page 18
Bay City Council, Kaye J described the task in
the following way:
The party alleging disqualifying bias
must establish that there is a
prejudgment of the matter, in fact, to
the extent that any representations at
variance with the view, which has been
adopted, would be futile. Statements by
individual members of Council while
they may very well give rise to an
appearance of bias will not satisfy the
test unless the Court concludes that they
are the expression of a final opinion on
the matter, which cannot be dislodged.
In this regard it is important to keep in
mind that support in favour of a
measure before a committee and a vote
in favour will not constitute
disqualifying bias in the absence of some
indication that the position taken is
incapable of change. The contrary
conclusion would result in the
disqualification of a majority of council
in respect of all matters which are
decided at public meetings at which
objectors are entitled to be heard.”
This would appear to be difficult to prove,
although not impossible, as was show in Bycon
Pty Ltd and Ors v Moira Shire Council, Registrar
of. Titles and Anor6 where Vincent J found the
local council had breached the bias rule in
circumstances where the Council was so
committed to a development, that it was
unrealistic to suggest that the subsequent formal
compliance was anything more than mere ritual,
designed to avoid a successful challenge…by the
creation of an illusion that any submission
opposing the development had been seriously
considered.
Application of the bias rule for
public officials involved in
administrative decision-making
The application of the bias rule to public officials
is less stringent than for judicial officers, but is
not as relaxed as for elected officials.
There are two different scenarios where public
officials can be accused of bias. The first scenario
is where the public official exercises a statutory
discretion. An example of this scenario arose in
the Federal Court in Mongan v Woodward. The
second scenario is where another person (for
example a minister) exercises the discretion and
the public official is involved in giving advice to
that other person. An example of the second
scenario arose in Hot Holdings.
Mongan v Woodward7
Facts of the case
The applicant, Edwin Mongan, was found by the
second respondent, Annwyn Godwin, to have
breached the Australian Public Service Code of
Conduct, in relation to his storing of non-work
materials on his office computer in
contravention of a direction previously given by
the first respondent, Lionel Woodward. The
materials contained what were considered to be
both offensive and pornographic matter.
Mr Woodward was the Chief Executive Officer
of the Australian Customs Service ("the ACS");
Ms Godwin was National Manager (Staffing) in
the ACS and was Mr Woodward's delegate in
making a determination under the procedures he
had established for determining whether an
Australian Public Service employee in the ACS
had breached the Code.
The applicant sought to restrain Ms Godwin (as
delegate) and Mr Woodward (as CEO of the
ACS) from proceeding under s 15 of the Public
Service Act 1999 (Cth) to impose the
foreshadowed sanction of termination of
employment. He alleged there was a reasonable
apprehension of bias in both respondents; on the
basis that Mr Drury, the Deputy CEO of the
ACS) had forcefully expressed his views as to a
desirable outcome, and Ms Godwin as a more
junior member of staff, was unable, as a result, to
form an independent view.
Findings of the Court
The Federal Court held that the Ms Godwin
would be affected by apprehended bias and
should not act further in the matter. Mr
Woodward on the other hand was not prevented
from hearing the disciplinary proceedings
because there was no reasonable apprehension
that he would be impermissibly influenced by Dr
Drury’s views (although the Court thought it
Page 19
would be preferable if Mr Woodward delegated
the matter to someone else anyway.
In relation to Ms Godwin, the Federal Court
stated that:
[19] …[a] fair minded observer might
reasonably conclude that, in a
bureaucratic structure such as is
evidenced in this matter, their
respective positions provided a sufficient
relationship of influence as could make
Ms Godwin susceptible to influence for
impermissible reasons. I acknowledge
that it might be the ideal of the APS that
public servants will act fearlessly in
discharging their functions.
Nonetheless, it is necessary also to
acknowledge that human nature is as it
is.
Hot Holdings Pty Ltd v Creasy
This case arose over the granting of a mining
tenement by the Western Australian Minister for
Mining. The appellant and the first respondent
(amongst others) applied for a mining tenement
within minutes of one another over largely the
same area. A mining warden decided to
determine priority between the various
applicants by way of a ballot. The appellant won
the ballot. However the decision to grant the
mining tenement lay with the Minister. The
Minister received a briefing paper from his
department. He subsequently had a number of
meetings with a Senior Assistant Crown Solicitor
and a General Manager of the Department. Six
weeks after receiving the briefing paper he
granted the mining tenement to the Appellant.
After the decision, it became known that two
officers who had been involved in the
preparation of the briefing paper had indirect
interests in the outcome of the matter. The first
officer, Mr Miasi owned 40,000 shares in a
company (AuDAX) which had an option
agreement to purchase a 80% interest in the
mining tenement if the Appellant was successful.
The second officer, Mr Phillips had a 29 year old
son who also held shares in AuDAX.
A majority of the High Court decided that the
involvement of Mr Miasi was very limited and
could be described as peripheral. That being so,
it could not be said that a fair-minded and
informed member of the public, who knew what
Mr Miasi had done, could fairly suspect that the
content of the departmental advice was
influenced by the interest Mr Miasi held in
AuDAX.
The majority left open whether the apprehended
bias of someone other than a decision-maker
could breach the bias rule because they took the
view that no such circumstances existed in this
case.
While agreeing his fellow judges regarding the
law on bias, Kirby J reached a different
conclusion which can be summarised as:
The appearance of integrity has been
undermined, whatever may have been
the actuality. That is enough to require
that the process be performed again,
exercising the participation of officials
who had known but undeclared
personal interests.
Second strictest application of
bias rule - administrative
tribunals
The application of the bias rule for
administrative tribunals will still be strict,
however it may be possible that the
circumstances of the case permit some variation
from the strictest application of this rule. This
position is reflected in a number of cases where a
Court has reiterated the importance of a strict
application of the bias rule, but has found that
the circumstances justified some variation to the
normal rule. For example, in Maguzzu v
Business Licensing Authority,8 Eames J stated
that:9
The principles of natural justice do not
differ significantly as between what
might be expected of judges of a court
and persons hearing appeals before a
quasi judicial tribunal, and the test as to
whether conduct amounts to actual or
apprehended bias, is the same for
tribunals as for courts of law. However,
what justice requires in a given case may
vary according to the circumstances of
each case, including the nature of the
inquiry which is being conducted by the
Page 20
tribunal, the nature of the function of
the tribunal and the relationship
between the tribunal and the person to
whom procedural fairness must be
accorded.
Two examples can be given of where the bias
rule has not been found to apply to a tribunal in
circumstances where it may well have been
found to apply had the decision-maker been a
judicial officer.
Maguzzu v Business Licensing
Authority
Mr Maguzzu had applied for a Prostitution
Service Provider Licence and this had been
refused by the Business Licensing Authority.
Maguzzu sought to challenge this decision in
VCAT. On 7 February 2000, VCAT, constituted
by three sitting members, commenced hearing
this application for review. One of the members
of the three member tribunal was a police officer
(Mr Reid).
On 8 February 2000, Maguzzu made application
that “the Tribunal disqualify itself from
proceeding with the hearing on the ground of
apprehended bias”. Counsel for Maguzzu told
VCAT that the Mr Reid had been observed the
previous evening talking to another police officer
(Mr Amor) who was likely to be called as a
witness. Mr Amor had been offered a lift back to
the police station by Mr Reid which he had
accepted.
Pursuant to section 108 of the Victorian Civil
and Administrative Tribunal Act 1998 (Vic), the
same tribunal then sat to consider whether it
should be reconstituted and decided to replace
Mr Reid with Ms Lambrick. The plaintiff
objected to the fact that the tribunal, including
the member who had announced his
disqualification on the grounds of bias, should sit
to consider reconstitution, as well as the ability
of the reconstituted tribunal from continuing to
hear his application.
Eames J held that it was not reasonably open to a
fair minded and informed observer to apprehend
or suspect that by virtue of the actions by Mr
Reid, the other members of the Tribunal might
not bring an impartial mind to the resolution of
the question which the Tribunal had to decide.
Re Minister for Immigration and
Multicultural Affairs; Ex parte
Epeabaka10
The applicant, in April 1996, sought a protection
visa, claiming to be a refugee. In September
1996, a delegate of the first respondent refused
that application. The applicant, in October 1996,
applied to the Refugee Review Tribunal ("the
Tribunal") to review the delegate's decision. The
Member constituting the Tribunal was Dr Rory
Hudson. In January 1997 the Tribunal affirmed
the delegate's decision.
In February 1999, the applicant commenced
proceedings in the original jurisdiction of this
Court, claiming that Dr Hudson was affected by
apprehended bias.
The source of the asserted apprehension of
partiality and prejudice was a public statement
made on the internet by Dr Hudson, said to
reveal what counsel for the applicant referred to
as his "attitudes" towards people claiming refugee
status. Counsel explained that, by "attitude", he
meant "an entrenched predisposition toward an
issue or a class of person". The entrenched
predisposition was said to involve an adverse
opinion of the credibility of people claiming to
be refugees.
A majority of the High Court (Gleeson CJ,
McHugh, Gummow and Hayne JJ) overturned
the earlier finding of apprehended bias with
respect to Dr Hudson. In its reasons for this
decision the majority made the following
comment:
The practical content of the
requirements of natural justice, or
procedural fairness, in the case of the
operations of the Tribunal is affected
both by the non-adversarial form of its
procedures, the nature of the
matters it is required to consider
in coming to a decision, and the
legislation which in some
respects directly modifies those
requirements... The kind of
Page 21
conduct on the part of the
Tribunal that might give rise to a
reasonable apprehension of bias
needs to be considered in the
light of the Tribunal's statutory
functions and procedures.
Conduct which, on the part of a
judge in adversarial litigation,
might result in such an
apprehension, might not have the
same result when engaged in by
the Tribunal. That is another
matter.
Strictest application of the bias
rule - courts
The Bias Rule is enforced the most strictly with
judicial decision-makers. The importance of this
rule was reiterated in Ebner v Official Trustee in
Bankruptcy where a majority of the High Court
stated:11
Fundamental to the common law system
of adversarial trial is that it is conducted
by an independent and impartial
tribunal. Perhaps the deepest historical
roots of this principle can be traced to
Magna Carta…Many other examples
could be drawn from history. It is
unnecessary, however, to explore the
historical originals of the principle. It is
fundamental to the Australian judicial
system.
R v Bow Street Metropolitan
Stipendiary Magistrate; Ex Parte
Pinochet (No 1)
The facts of this case were that, at the start of the
original House of Lords hearing, Amnesty
International had been given permission to
intervene in the proceeding. After the House of
Lords gave judgment in the appeal, it became
known that one of the five judges, Lord
Hoffmann, was an unpaid director and chairman
of Amnesty International Charity Limited, an
organisation set up and controlled by Amnesty
International. It also became known that Lord
Hoffmann's wife was employed by Amnesty
International. General Pinochet then applied to
the House of Lords to set aside its earlier decision
on the grounds that the links between Lord
Hoffmann and Amnesty International had not
been declared and were of a kind that would give
rise to the appearance of possible bias.
In December 1998 a newly constituted panel of
five judges in the House of Lords held
unanimously that the relationship between
Amnesty International and Lord Hoffmann
disqualified him from hearing the case. The
judgment of the House of Lords previously given
was set aside.
The court did not find that Lord Hoffmann
personally held any view, or had any objective,
regarding the question whether General
Pinochet should be extradited: but handed down
its decision to uphold the ‘immutable’ principle
that a judge cannot be sent o be acting in his or
her own cause.
1
Ibid [119].
2
(2001) 205 CLR 507.
3
One example of this strict application of the test
can be seen in R v Bow Street Metropolitan
Stipendiary Magistrate; Ex Parte Pinochet (No
1)12 where the House of Lords had ruled that
General Pinochet, the former dictator of Chile,
was not immune from arrest and extradition in
relation to the crimes he was alleged to have
committed whilst in office.
[2007] FCA 1178 (Marshall J).
Ibid, [141].
5
Ibid, [145].
6
[1998] VSC 25.
7
[2003] FCA 66.
8
[2001] VSC 5.
9
Ibid, [39].
4
10
11
(2001) 206 CLR 128.
[2000] HCA 63 [2] (Gleeson CJ, McHugh, Gummow
and Hayne JJ).
12
[2000] 1 AC 1 AC 61.